The Left’s Revealing Overreaction to Attorney General Barr’s Landmark Speech

Watching the hysterical reaction of the radical Left—such as
Ruth Marcus of the Washington Post—to
Attorney General Bill Barr’s thoughtful, well-reasoned, important speech at the
Federalist Society convention on the constitutional doctrine of the unitary
executive is like history repeating itself. 
Liberals had the same overreaction to former Attorney General Edwin
Meese’s 1985 speech to the American Bar Association on the Constitution and originalism.

Only someone as openly partisan and ill-informed as Marcus
could possibly claim that a speech explaining the historical basis of the
Founders’ views on the importance of a strong executive is “angrily partisan” and
“scary.”  So what did Barr say that was
so alarming to liberals?

First, he cited President Donald Trump’s praise of General
Meese as one of the “most eloquent champions for following the Constitution as
written.”  Praising Meese and originalism
is anathema to liberals who believe in a “living” Constitution that can be
bent, twisted, and broken by ideological judges to fit their view of what an
American utopia should look like, ignoring rights they don’t want (like the
Second Amendment) and creating nonexistent rights they do want (like the Court-created
abortion “amendment” in the Bill of Rights).

But Barr’s real crime in his November speech was detailing
the damage being done to the Constitution by Congress and the courts usurping presidential
authority.  The American presidency, Barr
said, is “one of the great, and remarkable innovations in our
Constitution.”  It has been “one of the
most successful features of the Constitution in protecting the liberties of the
American people.” The “steady encroachment on presidential authority” has
“substantially weakened the functioning of the executive branch, to the
detriment of the nation.”

Many historians mistakenly believe the American Revolution was
a rebellion against “monarchical tyranny” and that the Founders wanted a weak
executive. By that time, though, the British Parliament had “effectively
neutered” the monarchy.  In fact, as Barr
explained, the Founders understood that their “prime antagonist was an
overweening” legislature, a view strengthened by a weak executive during the
American Revolution as well as under the Articles of Confederation.

Thus, said Barr, the Founders wanted a strong executive who
could “act with energy, consistency and decisiveness.”  As Thomas Jefferson put it, for “the prompt,
clear, and consistent action so necessary in an Executive, unity of person is
necessary.”  And so we have the constitutional
doctrine of the unitary executive.

Barr pointed out that one of the “more amusing aspects of
modern progressive polemic is the breathless attacks” on the unitary executive
as if this doctrine is something new that justifies “executive power of
sweeping scope.” But this is also wrong. 
Not only isn’t the unitary executive a new idea, but rather than
pertaining to “the breadth of presidential power,” it simply means that that
the powers  of the executive branch,
whatever they are, “must be exercised under the president’s supervision.”

Thus, when Congress encroaches on the authority of the executive
branch by vesting the “power to enforce the law in someone beyond the control
of the president, it contravenes the Framers’ clear intent to vest that power
in a single person, the president.”  So
much, says Barr, “for this supposedly nefarious theory of the unitary
executive.”

Barr is deeply concerned that “there has been a steady
grinding down of the executive branch’s authority” that damages the ability of
the president to carry out his constitutional duties and to protect the liberty
and freedom of the American people.  With
Trump’s election, his opponents launched what Barr called “The Resistance,” an
explicit strategy to use “every tool and maneuver available to sabotage the
functioning of his administration.” 

The word “resistance,” points out Barr, is the word used to
“describe insurgency against…an occupying military power” and it “connotes that
the government is not legitimate.”  Barr
warns that this is “a very dangerous—indeed incendiary—notion to import into
the politics of a democratic republic.”  Instead
of acting as the “loyal opposition” as political opponents have done throughout
our history, Trump’s opponents are “engaged in a war to cripple, by any means
necessary, a duly elected government.”

This includes the Senate’s “unprecedented abuse of the
advice-and-consent process” that is intended “to delay the confirmation process”
so the president can’t have a “functional government.”  Congress also has “largely abdicated its core
function of legislating on the most pressing issues facing” our country.  Even when it does legislate, it punts “the
most difficult and critical issues” by “broad delegations to a modern
administrative state that they increasingly seek to insulate from presidential
control.”

All this gives Congress the time to “drown the executive branch
with ‘oversight’ demands for testimony and documents.”  Barr acknowledges congressional oversight
authority but says that the “sheer volume” of investigations today is meant to
“incapacitate the executive branch,” something members of Congress brag about.  Congress also is now dismissive of the
long-recognized doctrine of executive privilege, falsely labeling “good faith
attempts to protect executive branch equities” as “obstruction of justice.”

Barr doesn’t just take Congress to task—he also goes after
the judicial branch.  In fact, he says
that the federal courts are “the prime source of the erosion of
separation-of-power principles” and “executive branch authority.”  The steady encroachment by judges “has
substantially undercut the functioning of the presidency.” By appointing
themselves “the ultimate arbiter of separation of powers disputes between
Congress and executive,” they are “preempting the political process” and
usurping presidential authority in areas that are “considered at the core of presidential
power.”

That includes substituting their judgments for the president’s
in areas “that only a few decades ago would have been unimaginable—such as
matters involving national security or foreign affairs.”  The travel ban case is a good example of
that, says Barr, where the lower courts ignored an “explicit legislative grant
of authority” to the president, as “well as his Constitutional national security
role.” 

An “especially troubling aspect” of this expanded judicial
power is the courts now looking into the “subjective motivation behind
governmental action,” something the Supreme Court has traditionally refused to
do.  Judicial review in the past has
focused on executive action,
not executive motive.  Barr charges that the courts are now acting
“like amateur psychiatrists attempting to discern an executive official’s ‘real
motive’—often after ordering invasive discovery in the executive branch’s
privileged decision-making process.” 
Barr says that has “no more foundation in the law than a subpoena to a
court to try to determine a judge’s real motive for issuing its decision.”

All of this has been made much worse by another “judicial
innovation”—the nationwide injunction, which has “no foundation” in the law and
“radically” inflates the otherwise limited power of district court judges. More
than 40 have been issued during the Trump administration compared to only two
against the Obama administration.  As a
result, “virtually every major policy of the Trump administration has been subjected
to immediate freezing by the lower courts.” 
No other president in our history has been “subjected to such sustained
efforts to” stop his policy agenda.  These
injunctions “disrupt the political process.”

This also happened in the George W. Bush administration,
according to Barr, when the Supreme Court, after 9/11, “set itself up as the
ultimate arbiter and superintendent of military decisions inherent in
prosecuting a military conflict.”  The
Court has wrongly taken “the rules that govern our domestic criminal justice
process” and “superimposed them on the Nation’s activities when it is engaged
in armed conflict with foreign enemies.” 
This runs “roughshod” over the Constitution and the “role played by the president”
as the commander-in-chief.  He points out
the absurdity of the idea that the Constitution, intended to protect the rights
of the American people, confers “rights” on our foreign enemies.

Barr charges that the president’s opponents constantly
accuse him of “waging a war on the rule of law” and “shredding” the
Constitution.  But when Barr asks them to
explain what they are referring to, all he gets are “vacuous stares, followed
by sputtering about the travel ban.” 

It is the Left that is actually shredding constitutional
norms and “undermining” the rule of law with its “scorched earth, no-holds-barred
war of ‘resistance’ against this administration” says Barr.  Unfortunately, “so-called progressives treat
politics as their religion” and their “holy mission” is to “use the coercive
power of the state to remake man and society in their own image, according to
an abstract ideal of perfection.”  They
are willing “to use any means necessary” to achieve those ends, posing a danger
to our freedom and liberties.    

Fortunately, conservatives don’t think that way because they
don’t “seek an earthly paradise.” They are “interested in preserving over the
long run the proper balance of freedom and order necessary for healthy
development of natural civil society and individual human flourishing.” Thus,
conservatives “have more scruple over their political tactics and rarely feel
the ends justify the means.”

Barr ends his speech with a call to “not allow the passions
of the moment to cause us to permanently disfigure the genius of our constitutional
structure.”  Over our history, it has
been the presidency that has “provided the leadership, consistency, energy and perseverance
that allowed us to surmount” the challenges we have faced as a nation.  It “has bought to our republic a dynamism and
effectiveness that other democracies have lacked.”

This was, without doubt, the most important speech given by an attorney general since Ed Meese put us back on the road to restoring the original understanding of the Constitution in 1985.  Barr encapsulated the severe damage being done to the remarkable and extraordinary experiment in self-rule that the Framers of the Constitution created in that long, hot summer of 1787.  That damage has been going on for decades, but it has accelerated exponentially during the Trump administration.  Progressive activists and the president’s opponents in Congress, the judiciary, and inside the executive branch itself, are so intent on destroying Donald Trump that they are willing to burn down our republic to do it